The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects [...]]]> Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.

Identity Theft

The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.

Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.

Stays of Removal Pending Appeals

Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.

Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”

The Persecutor Bar to Asylum

The U.S. immigration laws include provisions that permit a noncitizen relief from removal if he or she has been persecuted, or faces a well-founded fear of future persecution, on account of political opinion, religion, race, nationality, and membership in a particular social group. There are a number of exclusions from such relief, including one for a noncitizen who persecuted others on account of one of the five enumerated grounds. The Supreme Court in Negusie v. Mukasey held that

“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.”

The issue presented by the case was whether the provision of the Immigration and Nationality Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” His refusal resulted in roughly two years in prison. Following his imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work at the prison, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to the applicability of the provision of the bar of asylum to persons who had persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group.

The Court reversed the Fifth Circuit’s decision for the U.S. government and remanded. Justice Kennedy wrote the opinion for an 8-1 Court. The Court held that the BIA had wrongly believed itself bound by the Court’s 1981 decision in Federenko, which dealt with another statute (Displaced Persons Act of 1948), and remanded to the agency for consideration of the issue under the asylum provisions of the Immigration & Nationality Act; according to the Court, ordinary deference to the agency’s interpretation of the statute under Chevron was not warranted given the BIA’s incorrect conclusion that it was bound by Federenko. Justice Thomas filed a dissent, claiming that the persecutor bar should apply to a person who persecuted others, coerced or not.

The Government’s Sole Victory: Aggravated Felony Definition

The U.S. government’s sole victory in the Supreme Court’s last Term was in a unanimous opinion by Justice Breyer, which affirmed the Third Circuit’s decision in Nijhawan v. Holder. The Petitioner, an immigrant from India, was convicted of conspiring to commit mail fraud and related crimes. Because the relevant statutes did not require a finding of the amount of a loss, the jury made no such finding. However, at sentencing, petitioner stipulated that the loss exceeded $100 million. He was sentenced to prison and required to make $683 million in restitution. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The immigration court found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. The Supreme Court affirmed.

What Do Victories for Noncitizens in the Supreme Court Mean?

In the four immigration cases this Term, the Supreme Court applied generally applicable principles of statutory interpretation, traditional equitable doctrines, and deference to administrative agencies. Losses for the U.S. government in the three cases suggests that the Bush administration took some extreme positions on immigration-related matters that even a conservative Supreme Court could not swallow.

Interestingly, the decisions involve bodies of jurisprudence (statutory interpretation, equitable principles, agency deference) that cut across many different bodies of law. The Bush administration made arguments that ran counter to the Court’s general tendency in those areas and lost in three out of four cases. Perhaps the Obama administration understands this, as the Solicitor General has abandoned the Bush administration’s position greatly limiting judicial review of discretionary immigration decisions in a motion to reopen case in which the Supreme Court granted cert.

In sum, wins for noncitizens in this case as well as Flores-Figueroa v. United States, Negusie v. Mukasey, and Nken v. Holder might be surprising to some with this staunchly conservative Supreme Court. But it once again demonstrates that immigration is not a simple liberal/conservative issue. And that the law indeed does matter.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse [...]]]> Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).

What justifies the disparate treatment given to these acts of illegal entry? One thought is that the wrong of illegal immigration is greater because national territorial integrity is a more substantial interest that an individual’s real property. But that can’t be true, since adverse possession divests the property owner entirely, whereas a single illegal immigrant does negligible harm to the United States.

Perhaps the issue is the frequency of the behavior. In other words, adverse possession rests on an unstated assumption (that might soon be tested with lots of homes sitting empty in foreclosure) that the doctrine is rarely invoked. If illegal immigration were uncommon, folks might be more inclined to extend amnesty under appropriate circumstances. Likewise, if squatting was rampant, maybe adverse possession would be eliminated (”Down With Property Amnesty”).

Or maybe the answer is that adverse possession is a common-law doctrine while immigration is governed by a dense thicket of statutes. Put another way, if judges were left on their own maybe they would have crafted something like adverse possession for illegal immigration, but they cannot because Congress takes an active role on this subject.

What do you think?

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the [...]]]> This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.

For the moral philosophers among us, the duress exception to the persecutor bar presents questions ripe for study. Immigrants within the borders of the United States who fear persecution in their homeland on account of one of five protected grounds are eligible for asylum, which is granted as a matter of discretion. The statute bars from asylum protection those who have “ordered, incited, or participated in the” persecution of others on account of one of the five grounds — thus a Hutu who had persecuted Tutsis during the genocide in Rwanda and then suffered persecution under the Kagame regime would not be eligible for asylum in the United States, and Mr. Negusie, who was tortured and then forced to work as a prison guard by the Eritrean government, may be excluded from asylum for acts he performed under coercion.

Is the reason for the persecutor bar, as Negusie argues, “because ‘persecution” presumes moral blameworthiness”? More importantly, does it then follow that those who persecute under duress are not culpable? Can coercion ever be an excuse for intentional killing? Or, as Scalia argues, is the persecutor bar simply a measure of desirability? Can we assume that those who persecuted others would be “relatively undesirable” as immigrants? Should this matter in the context of asylum, when the individual’s life may hang in the balance? Is it morally appropriate to lay down a bright line rule that excludes all those involved in persecution from asylum status, rather than examining individual situations on a case-by-case basis?

Difficult questions, all, and I’m afraid I don’t share the Supreme Court’s confidence in the Board of Immigration Appeals’ ability to answer them impartially, thoughtfully and fairly. Mr. Negusie will just have to wait and see.

The obvious answer to the question of how the economy will impact immigration is that it will decrease border crossings –fewer jobs across the board and particularly less disposable income in the hands of those who pay immigrants to work in their homes will mean less demand for labor. Combined with harsh workplace raids and tightening borders, we’d expect the financial crisis to result in a decrease in immigration. [...]]]> Following up on Frank’s excellent post on outward manifestations of the financial crisis, here are a couple of less obvious ways that the meltdown might affect immigrants. First, the counterintuitive: immigrants may end up with more money in their pockets. Second, the ugly: we may see an increase in hate crimes against immigrants.

The obvious answer to the question of how the economy will impact immigration is that it will decrease border crossings –fewer jobs across the board and particularly less disposable income in the hands of those who pay immigrants to work in their homes will mean less demand for labor. Combined with harsh workplace raids and tightening borders, we’d expect the financial crisis to result in a decrease in immigration. While that was the trend at the beginning of the meltdown, the recent strength of the dollar may end up reversing this expected outcome. As AP reports today, remittances to Mexico in October increased by 13% over October 2007, as a strengthened dollar bought more weakened pesos. Dilip Ratha of the World Bank predicts that this phenomenon might actually lead to an increase in immigration to the U.S., especially as inflation and unemployment climb in Mexico.

Particularly with an increase in immigration, the ugly side of the economic crisis may be an increase in hate crimes against immigrants. The FBI reports that hate crimes against Latinos have increased dramatically — by 40 percent — from 2003 to 2007 (while the Latino population grew by only 16 percent). Call it the “Lou Dobbs” effect; as xenophobic vitriol and resulting anti-immigrant sentiment has increased, so has violence against immigrants or those who appear to be immigrants. Add that to an economy in free-fall, and the result may be highly combustible. As we saw in Long Island last month and Pennsylvania earlier this year, horrifying pastimes such as “beaner hopping” may proliferate as hate-mongering politicians and journalists scapegoat immigrants for job losses and other woes. Vigilant enforcement of hate crime statutes may alleviate some of the simmering tensions, but effective change will require more flattering portraits of immigrants in the popular media and public eye.

However, these reports only skim the surface of the DOJ’s changes to the immigration system over the last seven years, and their lopsided effects. Shortly after September 11, [...]]]> Over the summer, a number of sources reported on the Justice Department’s politicization of the immigration bench during the Bush administration. In July, the DOJ’s Inspector General and Office of Professional Responsibility released an investigative report concluding that Justice officials had illegally vetted immigration judges based on their political ties and ideological views. In August, the New York Times published an analysis of the records of the judges appointed under the illegally politicized system, which suggested that these judges disproportionately ruled against asylum-seekers in comparison to their peers appointed under the applicable civil service system.

However, these reports only skim the surface of the DOJ’s changes to the immigration system over the last seven years, and their lopsided effects. Shortly after September 11, 2001, the DOJ implemented expansive “streamlining” rules to the system of immigration adjudication at the agency which had significant consequences for asylum-seekers, agency decision making, and federal courts. (The DOJ oversees the nation’s immigration courts and system of administrative appeals).

Shruti Rana’s superb article, Streamlining the Rule of Law: How the Department of Justice is Undermining Judicial Review of Agency Action, coming out in the Illinois Law Review, analyzes how these streamlining rules, intended to speed up the deportation process and reduce the backlog of cases pending at the agency, instead stripped the immigration system of critical checks and balances and undermined judicial review. The article traces how the politically-vetted judges were installed just as the DOJ sought to grant these judges increasingly unfettered discretionary power. As the agency’s decisions grew increasingly arbitrary and inscrutable, immigration appeals flooded the federal courts, rising to nearly 20% of the federal docket (and now make up 90% of administrative appeals in the federal courts). The article explores the resulting clash between judicial review and agency discretion, and its implications for the vitality of judicial review.

On to the juicy stuff. Much of my scholarship focuses on documenting and analyzing the disastrous state of our immigration system. I’m not alone in my fascination with this topic; in July, the Department of Justice’s Office of the Inspector General released a report on politicized hiring, over one third of which is devoted to immigration courts and the Board of Immigration Appeals, and the Government Accountability Office will soon release a report documenting the countless problems with the immigration courts.

Moreover, I know that all of you law professors out there [...]]]> A warm thank-you to Concurring Opinions for the invitation to return as a guest blogger! I enjoyed myself so much last time that I couldn’t resist returning despite being on leave.

On to the juicy stuff. Much of my scholarship focuses on documenting and analyzing the disastrous state of our immigration system. I’m not alone in my fascination with this topic; in July, the Department of Justice’s Office of the Inspector General released a report on politicized hiring, over one third of which is devoted to immigration courts and the Board of Immigration Appeals, and the Government Accountability Office will soon release a report documenting the countless problems with the immigration courts.

Moreover, I know that all of you law professors out there have received at least one student paper (if not multiple papers) that cites Wikipedia. This is one of my pet peeves and always garners a “FIND PRIMARY SOURCE!!” notation in the margins. But now I have an Eighth Circuit case, Badasa v. Mukasey, to which I can refer my students. Yes indeed, the Department of Homeland Security trial attorney submitted “information from an Internet website known as Wikipedia”, to be fair, among other documents, to establish the meaning of the term laissez-passer. (Note that the relevant Wikipedia page even warns the reader: “This article does not cite any references or sources.”)

As if it wasn’t bad enough to have a full-grown lawyer who graduated from law school, passed the Bar, and got a job with our government citing Wikipedia in court, the Immigration Judge relied on the Wikipedia information and other unnamed documents to establish that Ms. Badasa had failed to prove her identity and thus to deny her asylum claim. This incompetence would almost be humorous if it weren’t for the dire consequences of rejecting a valid asylum application and returning a refugee to a country in which they face torture and possibly death.

On to the Board of Immigration Appeals (BIA), the immigration system’s administrative appellate body. After rapping the judge lightly on the knuckles by stating that it did “not condone or encourage the use of resources such as Wikipedia.com in reaching pivotal decisions in immigration proceedings” and noting that the judge’s decision “may have appeared more solid had Wikipedia.com not been referenced”, the BIA declined to find that Ms. Badasa was prejudiced because the judge’s decision was supported by enough non-Wikipedia evidence to find no clear error. What??!??

Thankfully, the 8th Circuit stepped in and restored some sanity. After a thorough description of the perils of Wikipedia (that my Wikipedia-citing students will soon be reading), the Court noted that “[t]he BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum.” And one of my favorite cites of all times, from R. Jason Richards’ Courting Wikipedia: “Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?” An excellent question.

Finding the deferential “clear error” standard inappropriate here, the 8th Circuit remanded the case to the BIA to determine “whether the IJ would have reached the same conclusion without Wikipedia, or whether (and if so, why) the BIA believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision.” Word.

Hat tip to Prof. Kevin Johnson at the ImmigrationProf Blog.

[On May 12] [f]ederal immigration agents raided the Agriprocessors factory, arresting nearly 400 workers, most of them men, for being in the United States illegally. Within minutes of the raid, with surveillance helicopters buzzing above the leafy streets, the wives and children of Mexican and Guatemalan families began trickling into St. Bridget’s Church, the safest place they knew. . . .

Father Ouderkirk [of St. Bridget's] said in an interview . . . . “This has happened after 10 years of stable living. These people were in school. They were achieving. It has ripped the heart out of the community and out of the parish. Probably every child I baptized has [...]]]> States are passing more immigration laws, and the federal government has done some extraordinary raids recently:

[On May 12] [f]ederal immigration agents raided the Agriprocessors factory, arresting nearly 400 workers, most of them men, for being in the United States illegally. Within minutes of the raid, with surveillance helicopters buzzing above the leafy streets, the wives and children of Mexican and Guatemalan families began trickling into St. Bridget’s Church, the safest place they knew. . . .

Father Ouderkirk [of St. Bridget's] said in an interview . . . . “This has happened after 10 years of stable living. These people were in school. They were achieving. It has ripped the heart out of the community and out of the parish. Probably every child I baptized has been affected. To see them stunned is beyond belief.”

I have no idea what our general policy on immigration should be–suffice it to say that the Wall Street Journal editorial page’s emphatic support for nearly open borders leaves me leery of that kind of extremism. But I also agree with Father Ouderkirk that sudden interventions like the Iowa raid are in no one’s best interests. The dream of providing a better life for one’s family by working hard is the most genuine and pervasive form of heroism available today, as artist Dulce Pinzon writes:

The Mexican immigrant worker in New York is a perfect example of the hero who has gone unnoticed. It is common for a Mexican worker in New York to work extraordinary hours in extreme conditions for very low wages which are saved at great cost and sacrifice and sent to families and communities in Mexico who rely on them to survive.

The Mexican economy has quietly become dependent on the money sent from workers in the US. Conversely, the US economy has quietly become dependent on the labor of Mexican immigrants. Along with the depth of their sacrifice, it is the quietness of this dependence which makes Mexican immigrant workers a subject of interest.

The randomness of raids like that on Agriprocessors seems to make them less about realizing the rule of law than about striking fear into those at the bottom of America’s economic pyramid.

Photo Credit: Dulce Pinzon, Image of Bernabe Mendez, who “works as a professional window cleaner in New York [and] sends 500 dollars a month” in remittances back to Mexico. As her website explains, “Her latest project “The Real Story of the superheroes” . . . reintroduce[s] the Mexican immigrant in New York in a satirical documentary style featuring ordinary men and women in their work environment donning superhero garb, thus raising questions of both our definition of heroism and our ignorance of and indifference to the workforce that fuels our ever-consuming economy.”

Hat Tip: weather pattern.

–better training in international law

–reliance on the State Department for information about international issues

–a need for clinics to improve the immigration bar

–expanded membership of the Board of Immigration Appeals

–conferences so that judges can compare experiences and improve the system

–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters

These problem add up to Judge Posner’s conclusion that “personal [...]]]> Judge Posner has previously voiced his displeasure with immigration judges “the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.” This week he has re-stated this view in a speech to the Chicago Bar Association. Judge Posner has called the system “inadequate.” Per the National Law Journal, Posner identified several areas of concern

–better training in international law

–reliance on the State Department for information about international issues

–a need for clinics to improve the immigration bar

–expanded membership of the Board of Immigration Appeals

–conferences so that judges can compare experiences and improve the system

–barriers to understanding the applicant including a lack of familiarity with body language and the need for interpreters

These problem add up to Judge Posner’s conclusion that “personal values and biases” drive the decisions and that “perfunctory review” is often all that occurs.

Despite the problems specific to immigration judges, the basic question of judges relying on instinct seems to haunt all judges. In other words, Judge Psoner may be onto a problem that has both subject matter sources and has its roots in the way judges make decisions in general. There is some good literature on the general question of judicial decision making.

One of the fun parts of my job is co-chairing my school’s colloquium committee which means inviting folks to share their work. Last week Chris Guthrie of Vanderbilt Law School presented his work “Inside the Trial Judges Mind.” The work questions whether formalist or realist understandings of decision making properly explain judging. In their stead, the paper offers an “’intuitive-override’ model of judging. According to this model of judicial behavior, judges generally make intuitive decisions, but sometimes override their intuitive responses with deliberation.” It was a fascinating talk and the work opens many questions about how our system of justice works. For those wishing to read more of Chris’s work here is his SSRN page. The piece that may be of most interest is Blinking on the Bench: How Judges Decide Cases co-authored with Jeffrey J. Rachlinski and Andrew J. Wistrich. The article just came out in the Cornell Law Review.

Image: WikiCommons

Author: Roland Zumbühl (Picswiss), Arlesheim

License: GNU Free Documentation License, Version 1.2

Sunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

To Mr. Horsley, who has in the [...]]]> April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Sunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

To Mr. Horsley, who has in the past entered the country without incident, the recent fracas arose less from his past indulgences than a current one. In short, his very tall top hat.

“It’s a stovepipe,” he said, referring to the subspecies made famous seven score and seven years ago by Abraham Lincoln. “They asked my girlfriend, ‘Why is he wearing that hat?’ And she told them, ‘Because it wouldn’t fit in his suitcase.’ ”

Back home in England, he noted dryly that he had refrained from wearing his usual makeup and nail polish on the flight so as not to attract undue scrutiny — merely a three-piece suit by the Savile Row tailor Richard Anderson, a pink-and-gold-braid tie, a black velvet topcoat and fur-trimmed black leather gloves.

The NYT article wonders who needs to be protected from whom: U.S. citizens from Mr. Horsley, or Mr. Horsley from U.S. citizens who might fail to appreciate his eccentricities?

Though recent discussions of immigration policy have focused on what to do with undocumented persons already on U.S. soil, exclusion at the border is also an issue of interest. Moral turpitude might be the basis on which the U.S. has denied entry to shady characters such as Amy Winehouse and Sebastian Horsley. But intellectual turpitude is also grounds for exclusion. During the Cold War, the United States practiced “ideological exclusion,” denying visas to dangerous persons such as Gabriel Garcia Marquez, Doris Lessing, and that Communist conspirator in pyjamas, Pablo Neruda (scroll down here for my preferred translation of “Lone Gentleman”). At present, the U.S. is denying entrance to Dora Maria Tellez, a Nicaraguan historian and former revolutionary who had been invited to teach at Harvard; Tariq Ramadan, a Muslim scholar and Fellow at Oxford; Adam Habib, a South African professor of political science; and other scholars. The ACLU, which represents PEN American Center and others in legal challenges to some of these exclusions, has an interactive feature that allows the viewer to browse “passports” of famous persons excluded for their political associations or statements. One of my favorites was Canadian Prime Minister Pierre Trudeau, whose arrest in Moscow for throwing a snowball at a Stalin statue didn’t win him enough credit to prevent the U.S from excluding him for Communist sympathies. Or was the problem aesthetic turpitude? After all, Trudeau was a known fashionista, criticized in his own country for wearing a yellow ascot to the House of Commons.

Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government [...]]]> The case of Lyglenson Lemorin, a lawful permanent resident from Haiti facing terrorism charges in immigration court, raises interesting questions about the use of immigration law to prosecute terrorism cases. This phenomenon, known less-than-affectionately as “Crimmigration“, has been used to remove (aka deport) immigrants convicted of a variety of crimes after they have served prison time. But in what one immigration official calls the first case of its kind, Mr. Lemorin was acquitted of terrorism charges by a federal jury in Miami in December, yet faces nearly identical “material support” conspiracy offenses in immigration court this week.

Of course, the standard of proof for criminal charges in federal court is beyond a reasonable doubt — but not in immigration court; rather, the government must meet only the clear and convincing evidence standard in establishing that Lemorin conspired to engage in terrorist activity. In addition, he loses not only constitutional protections awarded to criminal suspects as well as the protections of the Federal Rules of Criminal Procedure, but the Federal Rules of Civil Procedure and the Federal Rules of Evidence don’t even apply in immigration court. One might say that the cards are stacked in favor of the government. Instead of a jury, Mr. Lemorin will be tried by an immigration judge, the perils of which are outlined in my recent article “Refugee Roulette.”

This particular case — lodged against a lawful permanent resident, a married father of two whose family now struggles to support itself — has drawn criticism not only from immigrants’ rights lawyers but also from Prof. David Martin, the former general counsel of the administrative agency formerly known as INS (now the Department of Homeland Security). Martin sees potential unfairness in the authorities’ ability to essentially try Lemorin twice for the same crime. But some might say that, like using tax laws to prosecute the Mafia, the immigration laws are fair game for ferreting out potential terrorists — after all, all’s fair in love and war. Isn’t it?

During the longest primary season on record, we’ve had plenty of opportunities to learn of the voting preferences of American women (favored Obama in Iowa but Clinton in New Hampshire), African-Americans (turned out in record numbers for Obama in South Carolina), Latinos (favored Clinton in Florida and Nevada), independent voters (inclined towards Obama [...]]]> A big thank-you to Dave Hoffman and the Concurring Opinions bloggers for inviting me for a guest stint. I’m looking forward to being a regular contributor for the next month, and to the feedback from blog readers! Unlike Paul, I have decided to blog today in one of my areas of substantive interest — immigration — but promise to be more adventurous next time! Now on to the substance:

During the longest primary season on record, we’ve had plenty of opportunities to learn of the voting preferences of American women (favored Obama in Iowa but Clinton in New Hampshire), African-Americans (turned out in record numbers for Obama in South Carolina), Latinos (favored Clinton in Florida and Nevada), independent voters (inclined towards Obama and McCain), and even the under-30 vote (generally favor Obama). But the pollsters have not explored the presidential preferences of a harder-to-locate group, estimated at 12 million individuals, who live and work among us — undocumented immigrants. Of course, the undocumented can’t vote, so it’s no surprise that the campaigns and polling organizations have not expended their resources to investigate the preferences of this group. But I posit that if we take Rawls’ Theory of Justice seriously, particularly the notion that society should be structured so as to balance social and economic inequalities such that they provide the greatest benefit to the least-advantaged members of society, we might want to think about the opinions that the undocumented might express in this political process. Moreover, the rallies and marches in response to immigration reform proposals last spring suggest that the undocumented population has some political voice of its own, and that at least some documented immigrants may represent this voice.

The complication, of course, comes in determining the preferences of a population that is largely underground. Unfortunately, my personal polling operation did not make it in to the office this morning (so unreliable!), so I’m forced to rely on analogies. According to a recent count by the Pew Hispanic Center, the undocumented are nearly 80% Latino and nearly 60% male; presumably they also skew low on the income scale and young. If we look at polls, the result might favor Clinton — Latinos and white working class voters tend to support her, although younger voters favor Obama. (Male voters, another group whose preferences haven’t much been highlighted in this election, are fairly evenly divided between Clinton and Obama.)

But if we look at a policy-based poll of documented and undocumented Latinos, we find that this group would like to see a comprehensive immigration reform bill, largely opposes workplace raids, and, by a small majority, favors providing driver’s licenses to the undocumented. As reported on the ImmigrationProfs blog, Obama has consistently supported licensing all drivers, while Clinton has, well, “flip flopped” on this issue. While some commentators argue that McCain is the strongest candidate on immigration reform, Obama has promised to take up the issue in his first term. It seems that Obama would win on the policy front — which takes us back to Rawls, and how we should don the “veil of ignorance” in practice. When the apparent policy preferences of a disadvantaged group conflict with how they might exercise their political preferences (admittedly speculative in this example), does this mean “we” should decide what is in their interest according to our interpretation of those policy preferences? Or should we measure social utility purely based on preferences expressed? This may be one of the more important questions of our time, and I can’t say I’ve reached a satisfying answer that doesn’t leave me feeling either patronizing or scared.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife’s grandfather, Nathan Milstein, a [...]]]> The Arts Section in today’s New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera’s stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife’s grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian’s and the biographer’s art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene’s grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan’s being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it’s entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of “undesirables,” and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I’m just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: “They tell me that I’m a Communist. . .It so happens that I’m a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow’s advice, refuse to take Moscow’s dictation. There are other differences, such as our belief that the worker’s solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow’s theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units.” (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer’s behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: “The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party.” Nathan met with Bojer in the Wayne County jail, where Bojer, “a very affable and highly cultured young man,” advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an “East bound deportation party” on December 29, 1932.

As to Nathan’s political views, here’s an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation “drives” and “spectacular raids” then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

Here’s more from the tribute:

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss. As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes. Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment. Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself. Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation. Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study reminds me of a fascinating documentary entitled “A Well-Founded Fear,” which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a [...]]]> That’s the advice savvy immigration lawyers will probably be giving applicants after the publication of a new analysis of 140,000 immigration decisions. The Atlanta office granted asylum to only 12% of applicants, compared to a national average of 40%. Intracourt disparities were also astonishing:

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

The study reminds me of a fascinating documentary entitled “A Well-Founded Fear,” which looks inside one immigration office and records cases presented to staff there. My main impression of the process (or lack thereof) was that the judges were often tasked with a near-impossible job of figuring out whether a given applicant was “credible” on the basis of a very informal “hearing”–basically, just listening to their story and asking questions designed to provoke inconsistent statements. Only a thick paper file documenting trauma or home country conditions had the potential to deter a snap judgment of “not credible.” The disparity among judges is also quickly in evidence–one appears to be a classic “bleeding heart,” but she is easily outnumbered by others who appear ready to dismiss just about any narrative of persecution as unbelievable.

Will Article III courts intervene to supervise this “agency under stress“? Early indications are grim. Consider this language from a First Circuit opinion in Albathani v. U.S.:

the Board member who denied Albathani’s appeal is recorded as having decided over 50 cases on October 31, 2002, a rate of one every ten minutes over the course of a nine-hour day. . . . We are not willing, however . . . to infer from these numbers alone that the required review is not taking place. . . . [W]orkload management devices . . . . do not, either alone or in combination with caseload statistics, establish that the required review is not taking place.

Which leads me to wonder–would one minute of review be enough? Fifteen seconds? When would such nanoreview cease being a “matter committed to agency discretion,” and threaten our sense of the rule of law?

Supporters of this term defend its use, pointing out that it carries some degree of descriptive accuracy. People labeled [...]]]> As noted earlier, Lou Dobbs is upset that more media outlets aren’t using the term “illegal alien,” instead often opting for the term “undocumented immigrant.” Dobbs suggests a conspiracy by the media. But the fact is that critics of the media don’t consistently use “illegal alien,” either. The term often gets shortened to merely “illegals.” (See, e.g., Wash Times, “Bush amnesty blamed for rise in illegals“; Wash Times, “Senate illegals bill near complete“; WorldNetDaily, “Arizona county helping illegals, critic charges“; KTAR, “Employer sanctions for hiring illegals stuck in Senate“; and the lovely article “Illegals go home” that has run in various outlets.)

Supporters of this term defend its use, pointing out that it carries some degree of descriptive accuracy. People labeled as “illegals” have indeed violated a law; therefore, suggest users, such people may accurately be called illegals. Is this reasonable?

This argument is not unreasonable on the surface. It is strongest if we accord similar treatment to other groups. That is, the reasonableness of this approach depends on whether we typically make one’s violation of law a primary or sole descriptor.

For example, if the principle is to be applied consistently, Kenneth Lay should be described as “an illegal” because of his conviction for a crime. Scooter Libby should similarly be called “an illegal.” In fact, one might expect proponents of the usage of illegals (in the context of immigration) to support this broader usage as well. After all, they seem quite concerned that a person’s status vis-a-vis law be used as that person’s primary or only descriptor.

The potential application of the “illegals” label is even broader, really. Immigration critics don’t confine their use to people actually convicted of crimes. Anyone who violates immigration laws — whether convicted or not — is subject to the term. For consistency’s sake, the same should apply to people who violate any other laws.

So both Kenneth Lay (convicted) and other unconvicted violators of corporate law should be called illegals. Let’s apply the term, consistently, to anyone who has ever violated a law. Anyone who has violated a law at any point — speeders, jaywalkers, late tax filers — should henceforth be called “an illegal.” Under this definition, I’m an illegal, and you probably are, too. (The term probably covers most Americans.)

Meanwhile, those who haven’t ever broken any law should be rewarded by being called “legals” in general parlance. Let’s raise compliance with law above race, religion, gender, or age, as one’s primary identifying attribute. I’m sure that Dobbs and other proponents of the “illegals” usage will be happy to extend it to its logical limit — why wouldn’t they?

I have only one other question, though — what exactly should we call the inconsistent folk who support the apparently racist approach of labeling immigration violators as “illegals,” but see no need to use that label on any violators of other laws?

Hmm.

I suggest we call such people, “bastards.”

Don Larsen, a district chairman, has submitted a resolution equating illegal immigration to “Satan’s plan to destroy the U.S. by stealth invasion” for debate at Saturday’s Utah County Republican Party Convention. Referring to a plan by the devil for a “New World Order … as predicted in the Scriptures,” the resolution calls for the Utah County Republican Party to support “closing the national borders to illegal immigration to prevent the destruction of the U.S. by stealth invasion.”

The resolution is apparently having trouble getting much support in the legislature. Now some might blame politics, or the somewhat [...]]]> Reader Marc B points out that a Utah state legislator has apparently identified the culprit behind recent illegal immigration problems. The source of the problem? Satan.

Don Larsen, a district chairman, has submitted a resolution equating illegal immigration to “Satan’s plan to destroy the U.S. by stealth invasion” for debate at Saturday’s Utah County Republican Party Convention. Referring to a plan by the devil for a “New World Order … as predicted in the Scriptures,” the resolution calls for the Utah County Republican Party to support “closing the national borders to illegal immigration to prevent the destruction of the U.S. by stealth invasion.”

The resolution is apparently having trouble getting much support in the legislature. Now some might blame politics, or the somewhat unusual nature of the resolution — but I kinda wonder if Satan’s not behind that, too. (It would make sense, no?)

Fortunately, Rep. Larsen and the other legislators will have the chance to ask Satan whether or not he’s really behind illegal immigration. Luck would have it that Old Scratch is visiting town to speak at a local university.